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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
TV 45 Productions, Inc. ) File No. EB-02-SD-033
Licensee, KLHU-CA ) NAL/Acct. No. 200232940003
Lake Havasu City, Arizona )
) FRN 0004-0823-76
Adopted: June 17, 2002 Released: June 19, 2002
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand dollars
($4,000) to TV 45 Productions, Inc. (``TV 45''), licensee of
Class A television station KLHU-CA, for willful and repeated
violation of Sections 11.35(a) and 11.61 of the Commission's
Rules (``Rules'').1 The noted violations involve TV 45's
failure to ensure that Emergency Alert System (``EAS'')
equipment is installed and operational and its failure to
conduct required weekly and monthly tests of the EAS.
2. On March 13, 2002, the Commission's San Diego,
California, Field Office (``San Diego Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to TV 45
for a forfeiture in the amount of eight thousand dollars
($8,000).2 TV 45 filed a response to the NAL on April 1,
3. On January 30, 2002, an agent from the San Diego Office
inspected KLHU-CA. During the inspection, the agent found
that TV 45 did not have any EAS equipment installed. Because
there was no EAS equipment installed, the station was unable
to monitor EAS transmissions from designated sources,
originate EAS transmissions or retransmit EAS transmissions or
required tests. The owner of the station, James W. Husted,
advised the agent that KLHU-CA had only recently become a
Class A television station and that it had purchased but had
not yet installed the EAS equipment. Mr. Husted also showed
the agent that KLHU-CA had the EAS unit on hand at the
station. Upon returning to the San Diego Office, the agent
checked the FCC database and found that KLHU-CA had been
granted Class A television status on February 6, 2001,
approximately one year prior to the inspection.
4. On March 13, 2002, the San Diego Office issued an NAL
for a forfeiture in the amount of $8,000 to TV 45 for failure
to ensure that EAS equipment is installed and operational in
willful and repeated violation of Section 11.35(a) and failure
to conduct required weekly and monthly EAS tests in willful
and repeated violation of Section 11.61.3 TV 45 submitted a
response to the NAL on April 1, 2002. In its response, TV 45
admits that the violations occurred, but nevertheless presents
several arguments for rescission or reduction of the proposed
forfeiture. First, TV 45 states that the EAS equipment was
not hooked up at the time of the inspection because KLHU-CA is
located in a remote community, where it is difficult to get
engineering assistance. TV 45 states that it had contracted
with a contract engineer to install the EAS equipment and
repeatedly asked him to finish the job, but the contract
engineer assured TV 45 that the equipment did not have to be
installed immediately. TV 45 also provides a statement from
the contract engineer, who maintains that he is the only
broadcast engineer within 150 miles of KLHU-CA and that he
simply had not worked installation of KLHU-CA's EAS equipment
into his busy schedule. Additionally, TV 45 asserts that it
has a record of compliance with the FCC rules. Finally, TV 45
argues that KLHU-CA is a small station with little revenue and
no profits and that payment of the forfeiture would result in
a serious financial hardship for the station. In support of
this argument, TV 45 provides copies of its tax returns for
1999, 2000 and 2001.
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended (``Act''),4 Section 1.80 of the Rules,5 and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999). In examining TV 45's response, Section 503(b) of
the Act requires that the Commission take into account the
nature, circumstances, extent and gravity of the violation
and, with respect to the violator, the degree of culpability,
any history of prior offenses, ability to pay, and other such
matters as justice may require.6
6. Section 11.35(a) of the Rules requires broadcast
stations, including Class A television stations, to install
and maintain operational EAS equipment so that monitoring and
transmitting functions are available during the times when the
station is in operation. Section 11.61 of the Rules requires
broadcast stations to conduct weekly and monthly tests of the
EAS. TV 45 admits that it did not have EAS equipment
installed at KLHU-CA from the time that KLHU-CA received Class
A television status until the time of the inspection.
Accordingly, we find that TV 45 willfully and repeatedly
violated Sections 11.35(a) and 11.61 of the Rules.
7. TV 45 asserts that KLHU-CA is located in a remote
community where it is difficult to get engineering assistance
and that, despite repeated requests, its contract engineer had
not yet installed the EAS equipment due to his busy schedule.
However, as TV 45 acknowledges in its response to the NAL,
licensees are responsible for the acts and omissions of their
independent contractors. See Netcom Technologies, Inc., 16
FCC Rcd 9524, 9526 (Enf. Bur. 2001); MTD, Inc., 6 FCC Rcd 34,
35 (1991); Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972).
Thus, we do not think that these facts warrant mitigation of
the forfeiture amount, particularly given that almost a full
year lapsed between the time that KLHU-CA received Class A
television status, and therefore was required to install EAS
equipment, and the time of the inspection.
8. TV 45 also asserts that its record of compliance with
the Commission's rules warrants mitigation of the forfeiture.
However, the Commission has considered the duration of a
violation in considering whether a licensee has a history of
overall compliance. See Commercial Radio Service Corp., 16
FCC Rcd 3543, 3545 (Enf. Bur., Tech. & Pub. Safety Div., 2001)
(denying a reduction for a history of overall compliance where
the licensee operated eleven specialized mobile radio stations
without authorization for five months). In light of the fact
KLHU-CA operated without EAS equipment for approximately one
year after it received Class A television status, we do not
believe that TV 45 has a history of overall compliance with
the Commission's rules for this station and therefore find
that no reduction of the forfeiture based on this factor is
9. Finally, TV 45 argues that KLHU-CA is a small station
with little revenue and no profits and that payment of the
forfeiture would result in a serious financial hardship for
the station. The Commission has determined that, in general,
a licensee's gross revenues are the best indicator of its
ability to pay a forfeiture. See PJB Communications of
Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992). After reviewing
the financial documentation submitted by TV 45, we conclude
that it is appropriate to reduce the forfeiture amount from
$8,000 to $4,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,7 TV 45 Productions, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of four thousand dollars ($4,000) for
failure to ensure that EAS equipment was installed and
operational in willful and repeated violation of Section
11.35(a) of the Rules and failure to conduct required weekly
and monthly EAS tests in willful and repeated violation of
Section 11.61 of the Rules.
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.8 Payment may be made by mailing a check or
similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232940003 and FRN
0004-0823-76. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to TV 45
Productions, Inc., 1600 W. Acoma Blvd., Suite 36, Lake Havasu
City, Arizona 86403, and to its counsel, Peter Tannenwald,
Esq., Irwin, Campbell & Tannenwald, P.C., 1730 Rhode Island
Avenue, N.W., Suite 200, Washington, D.C. 20036-3101.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 11.35(a) and 11.61.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232940003 (Enf. Bur., San Diego Office, released March 13,
3 Although the NAL cited TV 45 for violations of both Section
11.35(a) and Section 11.61, it only proposed an $8,000
forfeiture, the base forfeiture amount for failure to install EAS
equipment. The NAL did not propose a separate forfeiture for TV
45's failure to conduct required weekly and monthly EAS tests.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.